One of the most common questions family lawyers get when newly-separated clients walk through our office door is “so how much support do I have to pay them?” or on the flip side, “how much support am I going to get?” As with most legal questions, the answer is often “well, it depends”.
Step 1: Determining Entitlement
Before determining how much spousal support will be payable and for how long, the first step is to determine whether the lower-income spouse is even entitled to spousal support. In Canada, there are 3 bases of entitlement to spousal support: (1) compensatory; (2) non-compensatory (or needs-based); and (3) contractual. These three bases have been developed over time through legislation and relevant case law that has interpreted and applied the legislation.
The compensatory basis for support is applicable where the lower-income spouse has either suffered an economic disadvantage or conferred an economic advantage on the higher-income spouse as a result of their roles of the marriage. For example, a compensatory claim may arise where the lower-income spouse stayed home to care for the children or gave up the opportunity to advance their career so that the higher income spouse could advance their own career. Non-compensatory or needs-based claims for spousal support arise when the lower-income spouse is unable to meet their basic needs after separation or in some cases, or has suffered a significant decline in their standard of living post-separation. Finally, a contractual basis for entitlement spousal support arises when the parties entered into a domestic contract such as a marriage contract prior to separation, setting out that the lower-income spouse would be entitled to spousal support in the event of a separation.
In some cases, courts have found significant disparity in income to be sufficient to trigger entitlement, however, this rational can be interpreted quite subjectively and some recent case law has been mixed and only cited income disparity as a basis for support when compensatory factors were also present.
For married couples who are divorcing, the legislative provisions informing these bases for support entitlement can be found in subsections 15.2 (4) and (6) of the Divorce Act, RSC, 1985, c 3 (2nd Supp) as follows:
“Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.”
And for those who are wondering, no, cheating does not disentitle a lower-income spouse to support. Subsection 15.2(5) of the Divorce Act confirms that spousal misconduct in relation to the marriage shall not be considered by the court when making an order for support.
Furthermore, common law spouses can also be entitled to spousal support. For common law partners who have cohabitated continuously for a minimum of three years (or who have cohabited in a relationship of some permanence, if they are parents of a child as set out in section 4 of the Children’s Law Reform Act) or married spouses who have separated but do not intend to divorce, the relevant objectives informing the three bases for spousal support entitlement and any subsequent support order are set out in subsection 33(8) of the Family Law Act, RSO 1990, c. F3.
Step 2: Determining Amount and Duration
Once entitlement as been determined, the next step is determining the amount and duration of support payments. In Canada, reference is made to what are known as the Spousal Support Guidelines. The Guidelines suggest appropriate ranges of support in a variety of situations for spouses who are entitled to support, and are frequently relied on by judges and family law practitioners.
The Guidelines suggest ranges for the amount of support (low, mid and high) and duration based on the parties’ incomes, the length of marriage/cohabitation and the impact of any child support being paid. In order to determine which range is most applicable, lawyers and judges consider additional factors such as those set out in subsection 15.2(4) of the Divorce Act (above) for divorcing spouses and subsection 33(9) of the Family Law Act for common law or separating spouses. These factors include financial need, ability to become self-sufficient and relevant factors supporting a claim for compensatory support and more.
All-in-all, any claim for spousal support will be highly fact-specific and unique to the circumstance of the relationship.
If you have questions about separation and spousal support, including questions about preparing a cohabitation or marriage contract to address spousal support, contact the family law group at Mills & Mills LLP. We work to find solutions that work for our clients and their families. For more information on the services provided by our experienced family law lawyers, please contact us at 416-863-0125 or send us an email.
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